A Manager’s Guide to Free Speech and Social Media in the Public Workplace: An Analysis of the Lower Courts’ Recent Application of Pickering

Public organizations are experiencing a burgeoning of workplace challenges involving employee use of social media. Comments, images, or videos ranging from racist remarks, to calls to violence, simple criticism of one’s organization, to full on whistle blowing significantly challenge public organizations’ policies for addressing speech that creates discord in the workplace. With the blurring of lines between personal and professional lives, these challenges create uncertainty for public organizations regarding how to maintain the efficient operation of the workplace, deal with the social and political fallout of such instances, and manage organizational liability. This article performs content analysis on 33 federal lower court opinions involving speech/social media workplace issues. The study analyzes the manner in which the lower courts apply free speech precedent on contemporary workplace speech cases. The findings suggest that patterns emerge from the opinions providing key insights for public managers regarding how to better manage these complex issues.